Supreme Court of India
STATE OF UTTARANCHAL AND ANR.versusMADAN MOHAN JOSHI AND ORS.
- Citation
- 2008 INSC 659
- Decided
- 13 May 2008
- Disposal
- Disposed off
- Bench
- S B SINHA
Holding
Inter‑se seniority is a civil right and parties whose seniority would be affected must be impleaded; the High Court’s judgment is set aside and the matter remitted for fresh determination.
Summary
The case concerned the inter‑se seniority of lecturers of Kumaon University after their ad‑hoc appointments were regularised under the Uttar Pradesh Regularisation Rules, 1979. The first respondent, Madan Mohan Joshi, was placed lower in the seniority list than a junior colleague, Savita (Mohan) Dhondyal, prompting a writ petition under Article 226 challenging the list. The High Court allowed the petition without impleading the affected junior lecturers. On appeal, the Supreme Court held that inter‑se seniority is a civil right and that parties whose seniority would be altered must be impleaded; failure to do so vitiates the proceedings. The Court also noted that the question of which service rule (the 1979 UP Rules or the 2003 Uttarakhand Higher Education Rules) governs seniority remains unresolved. Consequently, the Supreme Court set aside the High Court’s order and remitted the matter for fresh determination after appropriate impleadment.
Issues considered
- Whether inter‑se seniority among university lecturers is a civil right requiring affected parties to be impleaded in a writ petition.
- Whether the failure to implead parties whose seniority would be affected vitiates the High Court’s judgment.
- Which service rule—Uttar Pradesh Regularisation Rules, 1979 or Uttarakhand Higher Education (Group A) Service Rules, 2003—governs the determination of seniority.
- Whether seniority constitutes a fundamental right under the Constitution.
Legislation cited
- Constitution of Indias. Article 226
Subjects
service lawinter‑se senioritycivil rightimpleadmentwrit petitionArticle 226seniority listUttar Pradesh Regularisation RulesUttarakhand Higher Education Service Rules
Judgment
(2008) 8 S.C.R. 591
STATE OF UTTARANCHAL AND ANR. A
v.
MADAN MOHAN JOSHI AND ORS.
(Civil Appeal No.3540 Of 2008)
MAY 13, 2008
B
[S.B. SINHA AND LOKESHWAR SINGH PANTA, JJ.]
Service Law - lnter-se seniority:
Writ Petition filed by Respondent - Challenging senior-
ity list of University Lecturers - Allowed by High Court - On C
appeal, held: 'Sand others, who lose their seniority, in the event
the writ petition was to be allowed, should have been impleaded
as parties - But that was not done - Inter se seniority may not
be a fundamental right, but is a civil right - Respective rights
of seniority of the parties, thus; required determination in their D
presence - Matter remitted ta High Court far decision afresh
- Respondent permitted to file application for impleading 'S'
and others· as parties - High Court directed to allow such ap-
plication for impleadment and determine the matter expedi-
tiously - Constitution of India, 1950 - Act. 226. E
lnter-se seniority amongst the Lecturers of Kumaon
University is in question in the present appeal.
First Respondent was appointed on ad hoc basis as
a Lecturer in a Government P.G. College, by the State of F
Uttar Pradesh through Vice:Chancellor, Kumaon Univer-
sity. All Lecturers including the First Respondent were
continued and treated on deputation with the University.
The State of Uttar Pradesh framed U.P. Regularization
Rules, 1979. Pursuant to and in furtherance of the said G
Rules, services of 355 ad hoc Lecturers were regularized.
However, the cases of nine Lecturers including the First
Respondent, who. had been working on deputation, were
left out. Representations were made by the Respondents
591 H
592 SUPREME COURT REPORTS [2008) 8 S.C.R..
A and others. It was contended that one 'S' was regularized
even though she was junior to First Respondent. The
services of nine Lecturers including the First Respondent
were regularized. However in the seniority list, the First
Respondent was placed at serial number 137 whereas the
B said 'S' was placed at serial No.102. Objections were filed
to the said seniority list. A writ petition was filed by the
First Respondent before the High Court which was al-
lowed.
In appeal to this Court, it was submitted on behalf of
C the State, that the High Court committed a serious error
insofar as it failed to take into consideration that the State
of Uttaranchal, having framed the Uttaranchal Higher Edu-
cation (Group A) Service Rules, 2003 was bound by the
provisions thereof and in that view of the matter, the High
D Court committed a serious error insofar as it failed to take •·
into consideration the effect of the statutory rules gov-
erning the field in their proper perspective.
Respondent, on the other hand, contended that as
the instant case was governed by the Rules which were
E applicable prior to coming into force of 2003 Rules, the
High Court has not committed any illegality and the im-
pugned judgment is unassailable. It was contended that
in the writ petition it was not necessary for the First Re- ...
spondent even to implead the said 'S' and others as party
F respondents, as no relief had been claimed against them.
Disposing of the appeal, the Court
HELD: 1. Services of the First Respondent as also
several others including 'S' were regularized in terms of
G the provisions of the U.P. Regularisation Rules. However,
the question as to which Rule would govern the inter-se ~ ...
seniority amongst the parties has not been determined.
The question as to whether the said 2003 Rules will have
retrospective effect or in any event will govern the cases
H of the parties was thus required to be determined by the
STATE OF UTTARANCHAL v. MADAN MOHAN 593
AND ORS.
-+ High Court. [Paras 13, 14,16] [598.A; G; 600-D] A
2.1. The High Court, in its impugned judgment, pro-
ceeded on the basis as to what would constitute a sub-
stantive appointment. Significantly in the writ petition,
even 'S' and others who lose their seniority in the event
writ petition was to be allowed, were not impleaded as B
parties. They should have been impleaded as parties in
..; )-
the writ application. 'S' and others, if the writ petition is
allowed, would suffer civil consequences. Inter se senior-
ity may not be a fundamental right, but is a civil right. The
respective rights of seniority of the parties, thus, required c
determination in their presence. [Para 17] [600-E-G]
2.2. The interest of justice would be subserved if the
impugned judgment is set aside and the matter is remit-
ted to the High Court for consideration of the matter afresh.
D
In the writ petition, the First Respondent may file an ap-
propriate application for impleading 'S' and others as party
and/or some teachers in their representative capacity. The
High Court is requested to allow the said application for
impleadment and determine the matter in accordance with
law as expeditiously as possible. [Para 20] [602-A-B] E
State of UP & Anr. v. Dinkar Sinha (2007) 7 SCALE 8
and Prabodh Verma & Ors. v. State of Uttar Pradesh & Ors.
AIR (1985) SC 167 -relied on .
.J. A. Janardhana v. Union of India & Ors. (1983) 3 SCC F
601 -distinguished.
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 3540
of 2008
From the final Judgment and Order dated 21.3.2006 of G
the High Court of Uttaranchal at Nainital in Writ Petition No. 71
_, +- (S.B.) of 2004
Gopal Subramanium, ASG, Rachana Srivastava and
Ashish Jain for the Appellants.
H
594 SUPREME COURT REPORTS 12008) 8 s_ c_ R
A Vinay Garg, Deepam Garg, Abhinav ramkrishna, Avatar
+•
Singh Rawat and Raj Singh Rana for the Respondents_
The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Leave granted.
B 2. Inter se seniority amongst the teachers of Kumaon Uni-
versity is in question iri this appeal which arises out of a judg-
ment and.order dated 21.3.2006 passed by a Division Bench
of the High Court of Uttaranchal at Nainital in Writ Petition No. 71
of 2004). · - '
c
Before adverting to the aforementioned question, we may
notice the factual matrix involved in the matter.
•
· ·' 3. First Respondent was appointed on an ad hoc basis as
a Lecturer in Government P.G. College, Almora by the State of
D _Utter Pradesh through Vice-Chancellor, Kumaon University on
or about 22.9.1975. The said College was declared as· the
Campus College of the University. All Lecturers including the
first respondent were continued and treated on deputation with
the University; the cut off date wherefor was fixed 16.8.1977.
E The State of Utter Pradesh framed U.P. Regularization Ru ~s.
1979, the relevant provisions whereof reads as under:
4.{i) Any person who
{i) was directly appointP.d on ad hoc basis befo::-?
1.1.1977 and is continuing in service.
{ii) ·Possessed requisite qualification prescribed fo,
regular appointment at the time of such ad hoc
appointment, and
(iii) Has completed or, as the case may be, after he has
completed three years continuous service.
-+ •
Shall be considered for regular appointment in permanent
or temporary vacancy as may be available on regular
appointment is made in such vacancy in accordance with
the relevant service rules or orders."
STATE OF UTTARANCHAL v. MADAN MOHAN 595
AND ORS. [S.B. SINHA, J.]
4. Pursuant to and in furtherance of the said Rules, ser- A
vices of 355 ad hoc Lecturers were regularized. However, the
cases of nine Lecturers including the first respondent, who had
been working on deputation, were left out. It is contended that
one Savita (Mohan) Dhondiyal who had also been appointed
as an ad hoc Lecturer on 17.4.1975 and, thus, being junior to B
the first respondent was regularized.
5. Representations were made by the respondents and
others. The Directorate of Higher Education, Uttar Pradesh
asked the Vice-Chancellor of the University to forward the list of
the said Lecturers pursuant whereto, services of nine Lecturers C
including the respondent were regularized by an order dated
11.7.1980, stating:
"The appointing authority in exercise of powers conferred
by Rule 5 of the Regularisation of Ad hoc Employees on
0
the posts within the jurisdiction of the U.P. Public Service
Commission Rules, 1979 issued by the Department of
Personnel vide its Notification No.19/8/75[1] dated 14th
May, 1979, and in view of the recommendations made by
the Selection Committee constituted for regularization of
the ad hoc lecturers working in various Government
Colleges under the Directorate of Education prior to 1st
January, 1977 in the pay scale of 700-1600, hereby
regularizes appointments of the lecturers with effect from
- the date of issuance of this order and they are being given
temporarily regular appointments on the posts of Lecturers
w.e.f. 11th July, 1980.
However, the seniority of these lecturers shall be according
to their Serial number given in the enclosed Annexure and
they will be junior to those lecturers who have been
regularized and appointed prior to the date of regular
appointment of these lecturers."
6. Aggrieved by the said order, they made a representa-
tion.
596 SUPREME COURT REPORTS [2008] 8 S.C.R.
•
A 7. By an order dated 9.6.1988, the services of the respon-
dent were appointed with effect from 1. 7 .1983, it was stated :
"Following officers of the Government Colleges working
as Lecturers in Botany Science in the pay scale of 2200-
4000 are hereby appointed on probation period of two
B years on the same dates with effect from the dates
mentioned against their names and their earlier services
would be counted towards this probation period and they
are hereby regularized on the said post and in the same
pay scale. However, their seniority would be determined
c later on.
Sr. No. Name and desig- Date of Details of
nation of Officer regularised vacancies
who has Been
D regularized.
1-20 xx xx xx
21. Shri Madan f7.1983 Regularised on
Mohan Joshi, the postw.e.f. F=
E Lecturer in 1.7.1983 Vide
Botany Science G.O. No. 2058/
15 84-11 - 12-
46/81 Dt.
1.8.1984"
F 8. The State of Uttarakhand then known as State of
Uttaranchal has been curved out from the State of Uttar Pradesh.
In the seniority list, the first respondent was placed at serial num-
ber 137 whereas Mrs. Savita (Mohan) Dhondyal was placed at
serial No.102. Objections were filed to the said seniority list
G V¥her~for recommendations were made by the Directorate of
Higher Education in the following terms : __.
"Dr. Joshi was appointed on ad hoc basis and pursuant to
his appointment he joined Almora College on 22"d September,
H 1975. Later on his services were approved by the Director of
STATE OF UTTARANCHAL v. MADAN MOHAN 597
- ·.+ AND ORS. [S.B. SINHA, J.]
Education (Higher Education), Uttar Pradesh, Allahabad on 27th A
,
March, 1976 with effect from the date of his joining the post.
His name in the senioritV list would have been mentioned at Sr.
No.102 after the name of Smt. Deveshwari Bis ht on the pasis
of his order of first appointment. But it wo.uld have been pcis-
sible if his name would .have been considered in the order of B
regularization dated 22nd May, 1980. It appears that his name
.. ~
was not included in the said order dated 22nd 'May, 1980 al-
though Shri Joshi was fully eligible for being considered in the
said order dated 22nd fvlay, 1980 according to the Regularisation
Rules of 1979. Therefore, if the Government so wi'shes, his c
order of regularization dated 11th July, 1980 should be amended
to the above effect."
9. A writ petition was file9 by the first respondent before
the High Court of Uttaranchal at Nainital which by reason of the
impugned judgment has been allowed. D
10. Mr. Gopal Subramanitim, learned Additional Solicitor
General appearing on behalf of the State, would submit that the
High Court committed a serious error insofar as it failed to take
into consideration that the State Uttaranchal, having framed the ..
Uttaranchal Higher Education (Group A) Service Rules, was E
bound by the provisions thereof and in that view of the matter,
the High Court committed a serious error insofar as it failed to
take into consideration the effect of the statutory rules govern-
..,, > ing the field in their proper perspectives .
F
11. Mr. Garg, learned counsel appearing on behalf of the
respondent, on the other hand, would contend that as the in-
stant case is governed by the Rules which were applicable prior
to coming into force of 2003 Rules, the High Court has not com-
mitted any illegality or the impugned judgment is unassailable ..
G
~
... 12. It was contended that in the writ petition it was not nee-
essary for the first respondent even to implead the said Savita
.., (Mohan) Dhondyal and others as party respondents, as no re-
lief had been claimed against them. Reliance has been placed
on A. Janardhana v. Union of India & Ors. [(1983) 3 SCC 601]. · H
598 SUPREME COURT REPORTS (2008] 8 S.C.R.
A 13. Services of the first respondent as also several others
+ .
including Savita (Mohan) Dhondyal, as noticed herein before
were regularized in terms of the provisions of the U.P.
Regularisation Rules.
Indisputably, services of those whose names appear above
B the first respondent, services of those were regularized w.e.f
22.5.1980 whereas that of the first respondent was regularized ~.
from 11.7.1980. The order dated 11.7.1980 categorically stated:
"Under Rule 4(3) of Uttar Pradesh Regularisation of Ad
c hoc Appointment within the purview of Public Service
Commission Rules 1979 framed vide notification No.19/
8175 (1) dated 14-5-1979 by the Personnel Department,
on the recommendation of the Selection Committee
constituted for regularization of Lecturers appointed on
ad hoc basis in the pay scale of Rs.700-1600 prior to 1-
D
1-1977 in the U.P. Government Inter Colleges under the
Directorate of Higher Education and in exercise of powers
under Rule 5 of the aforesaid Rules the competent authority
is pleased .to regularize ad hoc appointment of Lecturers
mentioned in the Schedule-1 w.e.f. the date of issuance of
E this order and they are given regular temporary
appointment on the post of Lecturer w:e.f. 11.7.1980.
The seniority of these Lecturers will be as per the serial
given in the schedule and they will be junior to the regularly ~
F selected Lecturers who have been appointed prior to the
regular appointment of these Lecturers."
The said direction has not been set aside by the High Court.
Validity thereof may be in question in the writ petition.
14. The question as to which Rule would govern the inter
G
se seniority amongst the parties has not been determined. Rule 4 ...
was framed by the State of Uttaranchal in 2003 in terms of the
proviso appended to Article 309 of the Constitution of India.
Rule 3(k) defines 'substantive appointment' to mean an
·H appointment, not being an ad hoc appointment, on a post in the
STATE OF UTTARANCHAL v. MADAN MOHAN 599
AND ORS. [S.B. SINHA, J.]
~
-t
cadre of the Service made after selection in accordance with A
the rules and if there are no rules in accordance with the proce-
dure prescribed for the time being by executive instruction is-
sued by the Government.
15. Rule 20 of the said Rules lays down the mode of de-
termining seniority in the following terms : B
•# ~ "20. Seniority :
(1) Except as hereinafter provided, the seniority of per-
sons in any category of posts shall be determined from the date
of the order of substantive appointment and if two or more per- c
sons are appointed together by the order in that case it will mean
the date of issue of order :
Provided that -
(a) if the appointment order specified a particular back D
date with effect from which a person is appointed,
substantively, that date will be deemed to be the date
of order of substantive appointment and in other
cases it will mean the date of issue of the order;
E
(b) if more than one order of appointment are issued in
respect of any one selection, the seniority shall be
as mentioned in the combined order of appointment
issued under sub-rule (2) of rule 17.
>- (2) The seniority inter se of persons appointed directly on F
the result of any one selection shall be the same as
determined by the Commission :
Provided that a candidate recruited directly may lose his
seniority if he fails to join without valid reasons when the
post is offered to him. The decision of the Appointing G
.,.. Authority as to the validity of reasons shall be final.
""'
(3) The seniority inter-se of persons appointed by
promotion shall be the same as it was in the cadre from
which they were promoted."
H
600 SUPREME COURT REPORTS [2008] 8 S.C.R.
A The said Rule also contains a power of relaxation being
Rule 25 which is to the following effect :
• "25. -Relaxation of the Conditions of service :
Where the State Government is satisfied that the operation
B of any rul_e regulating the conditions of SeNice of a person
~ppointed to the SeNice causes undue hardship in aYiy
particular case, it may notwithstanding any thing cont'!ined
in the rules applicable to the case, by order dispense with
or relax the requirements of that rule to such extehtand
c subjectto such conditions, as it may consider necessary,
for dealing .with the case in a just and equitable manner :
Provided that where a rule has been framed in consultation
with the Commission that body shall be consulted before .
the requirements of the rule are dispensed with or relaxed."
D
16. The question as to whether the said Rules will have
retrospective effect or in any event will govern the cases of the
parties, thus, was required to be determined by the High Court.
17. The High Court, in its impugned judgment, proceeded
E on the basis as to what would constitute a substantive appoint-
ment. The decisions of this Court, whereupon strong reliance
has been placed by the High Court in arriving at its conclusion
may not be of much significance but what is significant is that in
the writ petition even Savita (Mohan) Dhondyal and others who ,.
F lose their seniority in the event writ petition was to be allowed,
were not impleaded as parties. They, in our opinion, should have
been impleaded as parties in the writ application. Savita
(Mohan) Dhondyal and others, if the writ petition is allowed,
would suffer civil consequences. Inter se seniority may not be a
G fundamental right, but is a civil right. [See State of UP & Anr. v. ·
Dinkar Sinha [2007 (7) SCALE 8]. The respective rights of -f ..
seniority of the parties, thus, required determination in their pres-
ence. ~
18. A Three Judge Bench of Court in Prabodh Verma &
H Ors. v. State of Uttar Pradesh & Ors. [AIR 1985 SC 167], stated
STATE OF UTTARANCHAL v. MADAN MOHAN 601
AND ORS. [S.B. SINHA, J.]
the law as under: A
"A High Court ought not to decide a writ petition under Ar-
ticle 226 of the Constitution without the persons who would be
vitally affected by its judgment being before it as respondents
or at least by some of them being before it as respondents in a
representative capacity if their number is too large, and, there- 8
fore, the Allahabad High Court ought not to have proceeded to
hear and dispose of the Sangh's· writ petition without insisting
1 upon the reserve pool teachers being made respondents to that
writ petition, or at least some of them being made respondents.
in a representative capacity, and had the petitioners refused to C
do so, ought to have dismissed that petition for non-joinder of
necessary parties."
19. Reliance placed on A Janardhana (~µpra) by Mr. Garg,
in our opinion, is misplaced. Therein, no relief was claimed
0
against any individual. The only relief which was claimed therein
was against the Union of India. The question which was raised
therein was a question of interpretation. It was in the aforemen-
tioned situation, this Court held that all the employees were not
required to be impleaded as a party. In that case, the case of
direct recruits has not gone unrepresented. It was stated: E
"In this case, appellant does not claim seniority over any
particular individual in the background of any particular
>. fact controverted by that person against whom the claim
is made. The contention is that criteria adopted by the F
Union Government in drawing up the impugned seniority
list are invalid and illegal and the relief is claimed against
the Union Government restraining it from upsetting or
quashing the already drawn up valid list and for quashing
the impugned seniority list Thus, the relief is claimed G
,,_ ,_ against the Union Government and not against any
particular individual. In this background, we consider it
unnecessary to have all direct recruits to be impleaded as
respondent"
20. For the reasons aforementioned, we are of the opin- H
602 SUPREME COURT REPORTS [2008] 8 S.C.R.
+- -
A ion that the interest.of justice would be subserved if the impugned
judgment is set aside and the matter is remitted to the High
Court for consideration of the matter of afresh. The writ petition
of the first respondent may file an appropriate application for
impleading Savita (Mohan) Dhondyal and others as party and/
B or some teachers in their representative capacity. The High
Court is requested to allow the said application for impleadment
and determine the matter in accordance with law as expedi-
tiously as possible, preferably within the period of 8 weeks of
the negation of this Order.
21. The appeal is disposed of accordingly.
B.B.B. Appeal disposed of.
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